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Tomblin v. Renda Broadcasting Corp.

March 24, 2008

LISA TOMBLIN, PLAINTIFF,
v.
RENDA BROADCASTING CORPORATION DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION

In this memorandum opinion, the court considers the motion for summary judgment filed by defendant Renda Broadcasting Corporation ("RBC" or "defendant"), with respect to all claims asserted by plaintiff Lisa Tomblin ("Tomblin" or "plaintiff") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000 et seq. ("Title VII") and the Pennsylvania Human Relations Act, as amended, 43 PA. STAT. ANN. §§ 951 et seq. ("PHRA"). After considering the joint concise statement of material facts ("J.C.S."), defendant's motion for summary judgment, and the briefs and exhibits submitted by the parties with respect to the motion, the court will grant summary judgment in favor of defendant.

Factual Background and Procedural History

Plaintiff is an African-American female. J.C.S. ¶ 4. RBC is the owner/operator of Pittsburgh radio station WSHH, at which plaintiff has been employed since June 7, 2002. Id. ¶¶ 2-3, 5. Plaintiff was initially hired as a part-time announcer/board operator. Id. ¶¶ 5, 10, 65. Plaintiff initially worked as an on-air announcer for a Sunday shift from 4:00 p.m. to 7:00 p.m. Id. ¶ 11. Tomblin eventually began to work a Saturday on-air shift from 10:00 a.m. to 3:00 p.m. while continuing to work as a part-time radio board operator. Id. ¶ 12.

When Tomblin was hired at WSHH, the weekday mid-day on-air personality was Sherri White ("White"). Id. ¶ 17. Tomblin filled in for White on several occasions when White was on vacation or was not feeling well. Id. ¶ 20. She also briefly filled in for White at the beginning of White's maternity leave in August 2003. Id. ¶ 20-21. Ron Antill ("Antill"), program director at WSHH, testified in his deposition that Tomblin performed "OK" in this position. Id. ¶ 72. Tomblin did not appear on-air during the mid-day shift on a regular basis during this time period. Id. ¶ 21.

WSHH replaced White with a "virtual announcer" show utilizing the voice of Kathy Aparo, an announcer who resided in Florida. Id. ¶ 19. During this time, Tomblin and two other board operators continued to share mid-day board operator duties for the "virtual" mid-day show. Id. ¶ 23. In January 2004, White announced that she would not be returning from maternity leave. Id. ¶ 24. RBC posted the mid-day position the following month. Id. ¶ 25. A total of thirty people, including Tomblin, applied for the mid-day on-air position that opened in 2004. Id. ¶¶ 26-28. The overwhelming majority, including Tomblin, submitted either air checks or demo tapes. Id. ¶ 28. Tomblin informed Antill that the check tape she supplied was prepared at a time when she was experiencing a cold. Id. ¶ 66. Antill claims that he interviewed Tomblin for this position, while Tomblin claims she was not interviewed for this position. Id. ¶ 30. The mid-day on-air announcer position remained open through the summer of 2004. Id. ¶ 31.

In the meantime, consultants utilized by RBC recommended that WSHH move away from live on-air announcers during the weekends and replace them with "virtual shifts" by weekday full-time announcers. Id. ¶ 32. In June 2004, RBC's president, Anthony F. Renda, Sr. ("Renda Sr."), instructed Antill to take plaintiff off the air. Id. ¶¶ 6, 33. Renda, Sr. had listened to plaintiff and concluded, based on his experience in radio, that plaintiff sounded "amateurish," "stilted" and "unsure." Id. ¶ 34. Renda Sr. had only heard plaintiff on the radio on one occasion when he requested her removal from the air. Id. ¶ 76. Renda Sr. told Antill that plaintiff's on-air performance lacked the "polish" expected of an on-air announcer at a major-market station such as WSHH. Id. ¶ 35.

On or about June 27, 2004, Antill told plaintiff that a decision had been made to use a "virtual" announcer over the weekends, and as a result, although plaintiff would continue to work as a board operator, she would be taken off the air. Id. ¶ 36. Tomblin claims that prior to June 27, 2004, no one at WSHH ever requested a meeting to discuss Tomblin's performance or criticized Tomblin's on-air performance. Id. ¶¶ 63. Tomblin was never provided a written evaluation of her on-air performance. Id. ¶ 62. RBC claims that Antill had told plaintiff that her on-air delivery "sounded like reading," and that she needs to sound less "breathy." Id. ¶ 55. Multiple witnesses for RBC, including its expert, testified at deposition that plaintiff has not performed at "major market" levels of professionalism in terms of sound and presentation. Id. ¶ 54. Despite these things, plaintiff continued as a part-time board operator at WSHH to the present day, with no reduction in her salary or benefits. Id. ¶ 37. Additionally, Renda, Sr., has had three white, male announcers removed from the airwaves for performance related reasons in recent years. Id. ¶ 61.

In August 2004, WSHH hired Cynthia Brennan ("Brennan"), a Caucasian female, for the mid-day on-air announcer position. Id. ¶ 38. Brennan had no on-air radio experience, or any experience in operating a radio board. Id. ¶¶ 68, 69. After the decision to hire Brennan was announced, Antill told plaintiff that WSHH was hiring Brennan because of her background in television and radio as well as voice-over work. Id. ¶ 40. WSHH general manager, Tony Renda, Jr. also told plaintiff that Brennan was being hired because of her background in voice-over work and commercials. Id. ¶ 41. Antill requested that plaintiff train and assist Brennan in operating the radio board. Id. ¶¶ 44, 70, 82. Plaintiff complied with that request. Id. ¶ 44. Tomblin claims that Antill was not satisfied with Brennan's on-air performance, but worked to train Brennan rather than pulling her from the air. Pl.'s Br. at 11. Antill acknowledged that he offered Brennan feedback such as "[k]eep the break succinct, relax her presentation," and some direction on content and subject matter. Antill Dep. at 33-35. Antill also admitted that Brennan "fairly infrequently" missed cues. Id.

Brennan continued as the mid-day on-air personality at WSHH until June 2006, when she voluntarily resigned. J.C.S. ¶ 45. In Brennan's resignation letter she thanked the defendant as follows: "It is my deepest appreciation to you and your family for the respect that you have shown me. In allowing a professional in the business but a novice at the boards an opportunity to step into the mid-day position was a leap of faith for all of you, and I will forever be grateful." Id. ¶ 74. WSHH re-posted the mid-day position and beginning June 5, 2006, returned to the "virtual" show utilizing Aparo's voice. Id. ¶ 46. A total of 35 people, including Tomblin, applied for the mid-day on-air position in 2006. Id. ¶ 48. Antill interviewed five candidates for this position. Id. ¶ 49. Antill did not interview plaintiff in 2006 because he was already familiar with her work and had interviewed her in 2004. Id. ¶ 50.

RBC filled the mid-day on-air opening at WSHH in February 2007 through the hiring of Christine Ramsey, a/k/a/ Cris Winter ("Winter"), a Caucasian female. Id. ¶ 51-52. Winter was hired because she possessed an extensive resume of radio experience, including most recently at WWSW-FM (3WS), and also at WDVE-FM, and had the best performance in demo tapes submitted. Id. ¶ 53.

Gary Dickson ("Dickson") was hired in late August 2004 by RBC for a part-time weekend on-air position. Id. ¶ 56. Dickson had decades of full-time radio experience at stations in Pittsburgh, Houston and Boston. Id. ¶ 58. Dickson left WSHH at the beginning of 2005 to take over an all night talk show on KDKA. Id. ¶ 59. As a result, plaintiff's weekend hours increased when Dickson left. Id. ¶ 60.

RBC hired an expert radio consultant, Michael McVay ("McVay"), who testified at deposition that he reviewed and evaluated on-air performances of Tomblin and Brennan. McVay Dep. at 24-26. Without knowing the radio experience of either Tomblin or Brennan, McVay opined that Brennan is a significantly better sounding and more professionally toned air talent than Tomblin. Id. at 27:4-15; Def. Br. Ex. 7A. He further opined that Tomblin does not sound as if she is at the level of a major-market air personality. McVay Dep. at 29:2-3. At the time he rendered his opinion, McVay did not know that Tomblin was African-American. Id. at 29:16-19. Tomblin did not offer the testimony of an expert witness in this case.

On December 14, 2005, plaintiff commenced the above-captioned civil action asserting claims under Title VII and the PHRA for discrimination on the basis of race. The defendant filed an answer on February 14, 2006. Fact discovery was initially undertaken through September 12, 2006. Expert discovery, including the deposition of RBC's expert, Michael McVay, occurred between November 2006 and January 2007. Pursuant to this court's May 15, 2007 order, fact discovery was reopened for certain limited purposes until July 13, 2007. After the close of fact and expert discovery, RBC filed the present motion for summary judgment.

Standard of Review

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In determining whether the dispute is genuine, the court's function is not to weigh the ...


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